Why garnishee order nisi is commercial bankers’ nightmare — Lawyer
Garnishee order nisi is a Court order served on financial institutions, Banks or any person believed to be in possession of funds of a Judgment Debtor. Its purpose is to compel persons/institutions so served to engage legal representation to inform the Court by disclosing in a document known as the “affidavit to show cause” whether or not the said person/institution(usually commercial Banks) is in possession of funds of the Judgment debtor and the specifics of such funds. Service of this Order on any financial institutions (Banks) also operates to freeze the account of the judgment debtor in the event that such debtor maintains an account with the Bank. Monies found therein is consequently paid over to the judgment creditor to the extent of the amount owed as a Judgment debt, pursuant to the Garnishee order being made absolute against the specified sum.
Primarily, the right to apply for the discharge of the garnishee Banks inures solely in the Judgment creditor’s counsel; his presence in Court is important and his absence fatal.
Therefore, there’s a need to check this power and by extension, balance the Interest of the Judgment Creditors against that of the Banks.
2. MISAPPLICATION OF THE LAW
In practice, the law has been applied in a manner contrary to the intendment of the draftsman. The reading of Sections 83 of Sheriffs and Civil Process Act presupposes that Judgment Creditors should be certain before joining any garnishee to the suit, that such garnishee holds or at least had at some point held the funds of the judgment debtor. However, in practice, this is not so as garnishees in most cases are joined merely in the belief that ‘’they might’’ be in custody of the funds of the judgment debtor. Garnishee proceedings are largely a fishing expedition in Nigeria.
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3. EFFECTS OF GARNISHEE ORDERS ON BANKS AND THEIR LEGAL REPRESENTATIVES
3.1 Inordinate delay/ time waste
Garnishee proceedings sometimes linger in Court for over a year due to the objections that the Court Judgment resulting in the garnishee proceedings was gotten by fraud. This resulted in delay of the proceedings as the Court had to first decide whether the objections of the Judgment debtor had merit. The Banks were largely left with nothing to do other than to perpetually attend proceedings to ensure that their interests were protected in Court.
3.2 Unjustifiable cost and subjugation
Banks incur expenses to provide information on the account status of the Judgment debtor and also engage legal representation.
Furthermore, the legal regime for garnishee proceedings more or less subjects garnishees (Banks) to the whims and Caprices of the Judgment creditor’s Counsel. His unfettered powers have often been exercised (abused) to assume the role of Alpha and Omega during proceedings.
3.3 Needless hardship
The judgment creditor’s counsel sometimes is absent in Court on the date scheduled for the hearing for sometimes, his own selfish reason. Thus, causing the matter to be further adjourned at the detriment (continuous costs being incurred) of the Banks and their legal representatives.
Unreasonable demands by the Judgment Creditor ‘s counsel
On one occasion, the writer had represented a Bank in court where #65 belonging to the judgment debtor was made absolute. The judgment creditor’s counsel insisted that payment be made by draft not minding that raising a draft in that circumstance would cost more.
It is strange that at this time and age, Judgment Creditors’ Counsel still joins as many as Twenty-Two (22) Banks when applying for the order nisi. An aura of imprecision permeates this fishing method of search. The innovation of BVN which is a central system or link to every bank account a person maintains should have obviated the need to serve different Banks. Thus, a single Bank with the instrumentality of technology should be able to search, find and ascertain with precision, the totality of the available funds of the Judgment debtor and the Banks holding the funds.
DESIGNATION OF JUDGEMENT DEBTOR’S FUNDS ENQUIRY BANKS
It is recommended that certain Banks be designated “judgment debtor’s funds’ enquiry” Bank with boards of enquiry which a judgment creditor intending to set a garnishee proceeding in motion can approach at first instance to make the search a more targeted and precise one. These Banks will be solely established for the purposes of; searching out for a fee the financial details and status of persons including the Bank(s) housing their funds.
RECOVERY OF THE BANKERS’ COST FROM THE JUDGMENT DEBTOR
Judgment debtor’s non-compliance with a court order to pay the Judgment sum invariably prompts the use of garnishee proceedings. Expenses and its attendant delay would have been averted if the Judgment debtor had acted in good faith and paid off the debt which unequivocally remains the bone of contention
The Banks should be entitled to some form of relief from the Judgment debtor especially where there was no reason for the Bank to have come to the Court in the first place. Banks, in fact, have a more legitimate claim to costs of the day(s) than the average unwarranted defendant.
It has been observed from the body language of the Court that they are often reluctant to award cost against Judgment Creditors on the premise that the latter is also looking to recover debts due to them.
However, there is a need to trade with caution and award costs in situations where it is clear that the Judgment Creditor had simply employed the mechanism of the garnishee proceedings on a premise of Judgment gotten fraudulently.
Justice in garnishee proceedings must be seen as three-way traffic, Justice to the Judgment Creditor, Judgment debtor and most importantly, the garnishees (Commercial Banks).
Banks don’t get justice from garnishee proceedings, largely because our legal system has taken a more or less indifferent stance. Note: the Bank is not a party to the suit per se and has no place in the substantive suit. However, it has been episodes of nightmare for commercial Banks in Nigeria who often ensure perpetual legal representation in court due to fear/anxiety of having the whole judgment sum made absolute against them. Consequently, Banks incur enormous expenses.
While it is convenient to look away and conclude that this is a problem solely for the Banks to deal with, a closer observation will reveal the domino effect expenses incurred by banks may inturn have on their customers especially the common man: the average market woman, students, businesses and corporate bodies like companies that sell goods and offer services. They all complain about high bank charges and find it absurd and unthinkable to have a minor but noticeable deduction from funds in their respective accounts without any real logical explanation to justify the said deductions. Except and until the Banks themselves assert otherwise, we’re left to believe that It is not far fetched that the Banks’ customers partly or largely also bear these costs of garnishee proceedings ultimately, by way of high bank charges. Therefore, a wide spectrum of the citizenry have a stake in this subject matter.
• Femi Olude Esq, a writer and lawyer, wrote in via firstname.lastname@example.org